1617684 (Refugee) [2020] AATA 5310 (17 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1617684
COUNTRY OF REFERENCE: Kenya
MEMBER:Dr Colin Huntly
DATE:17 November 2020
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 17 November 2020 at 11:12am
CATCHWORDS
REFUGEE – protection visa – Kenya – particular social group – inter-tribal love marriage not approved by either family – general post-election, inter-tribal and inter-religious violence – first applicant’s previous student visa cancelled and period as unlawful non-citizen – second applicant’s visit to home country with no harm – ongoing relationships with some family members – no notification to department of changed circumstances – third country protection – East African Community (EAC) – state protection – best interests of Australian-born child – credibility – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 104, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BAJ16 v Minister for Home Affairs [2019] FCCA 1598
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
Ex parte Applicant S154/2002 [2003] HCA 60
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52, [2000] FCA 1788
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIMA v Lay Lat (2006) 151 FCR 214
MIMAC v SZRHU (2013) 215 FCR 35
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
SDAQ v MIMA (2003) 129 FCR 137
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZBEL v MIMIA (2006) 228 CLR 152
SZRTC v MIBP (2014) 224 FCR 570
WAGH v MIMIA (2003) 131 FCR 269
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 October 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Kenya, applied for the visa on 21 February 2016. The delegate refused to grant the visa on the basis provided at s.36(3)–(5) of the Act, that the applicants had not taken all possible steps to avail themselves of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia in circumstances where it would be legally reasonable to do so.
This finding was based on Kenya’s membership of the East African Community (EAC). In particular, the delegate found that the applicants were effectively barred from eligibility for the visa that is the subject of this application because of an apparent complying right to enter and reside in either Uganda or Rwanda, which are members of the EAC common market.
BACKGROUND
Applicants’ migration history
Applicant 1 entered Australia [in] February 2013 travelling on a [Student] visa. This student visa was cancelled on 2 June 2015 at which point the applicant became an unlawful non-citizen.
Applicant 2 entered Australia [in] July 2014 travelling on a [Student] visa.
Applicant 1 applied for a Protection visa on 21 February 2016. Applicant 2 was included in the Protection visa application as a member of the same family unit as Applicant 1. Applicant 2 made no separate claims for protection in this application.
Applicant 2 departed Australia for Kenya [in] December 2016 and returned to Australia from Kenya [in] January 2017.
Applicant 2 continued to hold a valid student visa until 15 September 2018. On 20 November 2020, Applicant 2 was granted a [different Temporary] visa, which expires on 20 November 2020.
The applicants attended a Protection visa interview with a delegate of the Minister for Immigration and Citizenship on 30 September 2016. This application was refused by the delegate by written decision dated 3 October 2016. The applicants seek review of this decision by the Tribunal as presently constituted.
Proceedings before the Tribunal
The applicants appeared before the Tribunal to give evidence and present arguments on three occasions. Firstly, in person on 21 January 2020; then, via MS Teams on 5 August 2020 a second hearing was held (also via MS Teams) which was adjourned to, and concluded on, 24 August 2020.
The applicants were initially represented in this application by a registered migration agent. However (following an acknowledgement by the agent at the first hearing of 21 January 2020 that they had provided the applicants with unsatisfactory advice in the conduct of their engagement), by email dated 7 February 2020 the applicants advised the Tribunal that they had withdrawn their instructions to their former migration agent. From this point in proceedings, the applicants elected to proceed without the assistance of a registered migration agent.
All Tribunal hearings were held in the English language.
Identity
The applicants provided a copy of their Kenyan passports to the Department with the application for protection. The Tribunal has no reason to doubt the validity of these documents. The Tribunal has reviewed the passports and has had the opportunity to interview the applicants on three occasions.
On the basis of the information before it, the Tribunal finds that the applicants are citizens of Kenya which is also the receiving country for the purposes of the refugee and complementary assessments.
DECISION SUMMARY
The issue in this case is whether the applicant satisfies the requirements for a protection visa in Australia for the essential and significant reason of historic and on-going inter-tribal and sectarian violence in Kenya (election related and other); and persons who are in either or both love marriages and inter-tribal relationships and who face implacable opposition from their families of birth. In the alternative, whether the applicants satisfy the requirements for a protection visa in Australia on complementary grounds due to family or societal stigmatisation, ostracisation and dislocation if they were to return to Kenya, now or in the reasonably foreseeable future.
Although not raised in the initial application for protection, I have also considered the best interests of the infant child of the applicants, born on [Date 1], noting that while this child is not presently an applicant for review, they are nevertheless a member of the same family unit as the applicants.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
DECISION MAKING FRAMEWORK
President’s Direction
I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020. I have also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:
· that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[1] and
· that ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[2]
[1]At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).
[2]At [8.1].
As noted above, I exercised the discretion to hold the second hearing via MS Teams video over two dates in August 2020. These hearings were held during the COVID-19 pandemic. I determined that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants and their dependent child. I note that this practice accords with the observations of the Tribunal as constituted in the related cases Tribunal Refugee Refs: 1816541 and 1820632 as follows:[3]
As observed by the Federal Court on several occasions since the commencement of the COVID-19 pandemic, the legal system must continue to function, and parties may have to accommodate less conventional approaches to hearings. Whether a hearing can or should proceed through online platforms is a matter that should be determined on the facts of each case.[4] In this case, I formed the view that the matter could proceed through MS Teams. Both applicants had good access to the internet, there were few documents to consider, there was a private place in their home for the hearing to be conducted and arrangements could be made for an interpreter to assist them.
[3]1816541 (Refugee) [2020] AATA 3476 (3 September 2020) at [6]; and 1820632 (Refugee) [2020] AATA 3477 (3 September 2020) at [5] per Deputy President Redfern. (Extract taken from Tribunal Ref: 1816541 at [6]).
[4]“Refer for instance Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Perram J); ASIC v GetSwift Limited [2020] FCA 504 (Lee J) [7] [33] and Tetley v Goldmate Group Pty Ltd [2020] FCA 913 (Bromwich J) [16].”
In making similar procedural and logistical arrangements in this matter, I had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the second hearing was not to be conducted by video. I also note that a lengthy period was allowed to the applicants following their decision to terminate the engagement that they had with their former registered migration agent before scheduling the second hearing.
I am satisfied that, in the circumstances applicable to this application for review, the applicants were given a fair opportunity to give evidence (including interviewing a nominated witness (by telephone) who was resident in [Country 1]) and a fair opportunity to present arguments, including by means of opportunities to provide further written submissions, in the format which was utilised for each hearing. I was able to interact with the applicants, and all parties were able to maintain line of sight and maintain appropriate communication throughout each of the proceedings.
Applicant credibility
The Tribunal’s task of fact-finding may involve an assessment of applicant credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[5] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
[5]E.g.: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic AffairsandMcIllhatton,[6] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’[7] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
[6](1996) 40 ALD 445.
[7]At (482).
The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[8] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[9]
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
[9]At [25].
The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that ‘where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.’[10] Nevertheless, as Burchett J counselled,[11] it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[10][1997] FCA 1198 ( accessed 15 February 2017).
The Full Court of the Federal Court noted that ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.’[12] On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84–86 relating to the previous statutory regime.
[12]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 ( accessed 15 February 2017).
Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[13] Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[14] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[15] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[16]
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
[13]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558–9.
[14]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).
[16](1999) 197 CLR 510 at [191].
I note, however, that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.
If the decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied. I note that in Iyer[17] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[18]
[17]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
[18]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.
I am mindful of the salutary comments of Flick J,[19] in SZSHV v MIBP [2014] FCA 253 (by reference to the former Refugee Review Tribunal) as follows:
31In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny. Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:
[78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
[19]Cited with approval by McKerracher, Griffiths and Rangiah JJ in CQG15 v MIBP [2016] FCAFC 146 at [41].
As highlighted by the Court in CQG15 v MIBP [2016] FCAFC 146:[20]
… Recitation of the expression that credibility is a matter [/question of fact for the Tribunal] par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:
(a) failure to afford procedural fairness;
(b) reaching a finding without any logical or probative basis;
(c) unreasonableness; and/or
(d) jurisdictional error as discussed by Flick J in SZVAP.
[20]At [38] per McKerracher, Griffiths and Rangiah JJ [parentheses added].
I note the particular reference by their Honours in the extract above at (b) to the importance of making findings of fact on logical or probative grounds with specific reference to credibility findings. I further note that, later in the same judgement,[21] their Honours referred in a generally approving way to an observation by Gordon J in SZLGP v MIC [2008] FCA 1198 relating to the United States 9th Circuit Court of Appeals decision in Stoyanov v INS[22] (Stoyanov):
The Court in Stoyanov went on to state that “minor inconsistencies cannot support an adverse credibility finding” and that “trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible”:
[21]CQG15 v MIBP [2016] FCAFC 146 at [43].
[22](9th Cir 1999) 172 F3d 731. Extract citation reference is to Stoyanov at 736.
However, a number of judicial caveats are of relevance when considering the manner in which credibility findings may be made in protection visa reviews and the ultimate use to which they may be put, either deliberatively or determinatively as the case may be. Firstly, as their Honours noted in CQG15 v MIBP [2016] FCAFC 146 at [59]–[60], one must be mindful of:
… the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]–[56]):
52As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
Consideration of how credibility findings might be affected by legal unreasonableness was also considered by the Court in the recent case of BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184. Their Honours made the following observations of utility:[23]
32First, the relevant question for the AAT under ss.36(2)(a) and (aa), 65 and 415 of the Act is whether it is “satisfied” that the criteria for a protection visa are met and as a consequence the decision of the AAT is subjective in nature: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277 (Brennan CJ, Toohey, McHugh and Gummow JJ); and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (W148/00A) at [65] (Tamberlin and R D Nicholson JJ).
33Secondly, the fact that a decision-maker has expressed her or his reasons sequentially does not mean that the decision-maker has decided each factual issue in isolation from the others. To the contrary, “[o]rdinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole”: S20/2002 at [14] (Gleeson CJ); see also at [49] (McHugh and Gummow JJ); and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 (Chen) at [33]-[35] (the Court). Indeed, there is no necessary error in the Tribunal not considering corroborative material until after it has reached its conclusions of credibility where the Tribunal has (lawfully) found that “the well has been poisoned beyond redemption”: S20/2002 at [49]; and Chen at [35].
34Thirdly, notwithstanding the subjective nature of the assessment required by the AAT and the factual nature of an assessment of credibility, the AAT’s decision must still be made within the bounds of legal reasonableness.
[23]Per Rangiah, Perry and Bromwich JJ.
In addition to the foregoing judicial guidance, I have also had regard to Migration and Refugee Division “Guidelines on the assessment of credibility”, issued in July 2015, which provides:
It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.[24]
[24]At [8].
Further:
In relation to protection visa applications made on or after 14 April 2015 if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made the tribunal must draw an inference unfavourable to the credibility of the claim or evidence. This refers to the requirements at section 423A of the Act.[25]
[25]At [13].
The Guidelines also advise that:
Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case. The tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal.
A Member should maintain and be seen to have an open mind when conducting a hearing. There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend. An applicant may be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.
However, the tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.[26]
[26]At [17]–[19].
With respect to contradictions, inconsistencies and omissions, the Guidelines state:
Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal.
The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[27]
[27]At [27]–[28].
New claims and evidence
Section 5AAA of the Act clarifies that it is the responsibility of applicants to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. On this view the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for applicants to make their own case.[28]
[28]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
Applicants are also expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. Two obligations here are particularly relevant:
i.The ongoing requirement under s.104 of the Act for applicants to ensure that their relevant details are correct and then to change any incorrect information at the first reasonable opportunity; and
ii.Section 423A of the Act requires the Tribunal to draw an adverse inference about the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made.
In such cases, if the Tribunal is satisfied that applicants do not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision the Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence.
Applicants are, therefore, required to present all claims and evidence to the primary decision-maker unless they have a reasonable explanation for not doing so.
Third country protection
I am mindful of the statutory exception to Australia’s protection obligations at s.36(3) of the Act which is as follows:
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
I also note the restriction that applies to this exception at s.36(5) of the Act which is as follows:
Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
In SZRTC v MIBP the Full Federal Court unanimously held that a temporary period of residence contemplated by s.36(3) need not be linked with protection obligations owed to an applicant, and need not be co-extensive with the period during which protection obligations persisted in relation to an applicant by reason of the circumstances in his or her country of origin.[29]
[29]SZRTC v MIBP (2014) 224 FCR 570 per Tracey and Griffiths JJ at [28], [33] and per Flick J at [43]. This rejected the approach of Lee J (obiter) in WAGH v MIMIA (2003) 131 FCR 269 at [34], namely that while the right to reside may not be permanent, it must be co-extensive with the period in which protection equivalent to that to be provided by Australia as a contracting state would be required, should not be followed.
It is of some utility here to extract the legislative history of s.36(3) provided in that case by Tracey and Griffiths JJ:[30]
[30]At [15]–[19].
- Section 36 of the Act relevantly provided that:
“(1)There is a class of visas to be known as protection visas.
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugee Convention as amended by the Refugees Protocol;
...
(3)Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4)However, subsection (3) does not apply in relation to a country in respect of which:
(a)the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5)Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a)the country will return the non-citizen to another country; and
(b)the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A)Also, subsection (3) does not apply in relation to a country if:
(a)the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.”
- Subsections (3), (4) and (5) were added by the Border Protection Legislation Amendment Act 1999 (Cth). Subsection (5A) was included by the Migration Amendment (Complementary Protection) Act2011 (Cth).
- The Supplementary Explanatory Memorandum for the Bill which became the 1999 Act established that a purpose of the amendments then introduced (of which ss.(3)(5) form part) was to counter forum-shopping by refugees who could find protection in countries other than Australia. Paragraph 5 of the Memorandum said that:
“The purpose of proposed subsections 36(3), (4) and (5) is to ensure that a protection visa applicant will not be considered to be lacking the protection of another country if without valid reason, based on a well-founded fear of persecution, he or she has not taken all possible steps to access that protection.”
- The Minister’s Second Reading Speech contained the following passages:
“The Refugees Convention and Protocol have, from inception, been intended to provide asylum to refugees with no other country to turn to.
Increasingly, however, it has been observed that asylum seekers are taking advantage of the convention’s arrangements.
Some refugee claimants may be nationals of more than one country, or have rights of return or entry to another country, where they would be protected against persecution.
Such people attempt to use the refugee process as a means of obtaining residence in the country of their choice, without taking reasonable steps to avail themselves of protection which might already be available to them elsewhere.
This practice, widely referred to as ‘forum shopping’, represents an increasing problem faced by Australia and other countries viewed as desirable migration destinations.”
- Paragraph 99 of the Explanatory Memorandum for the Bill which became the 2011 Act explained that:
The purpose of new subsection 36(5A) is to ensure that subsection 36(3) does not operate in relation to a person who could have sought effective protection in another country apart from Australia if the non-citizen has a well-founded fear that that country will return the non-citizen to a different country and the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to that different country.
Helpfully, their Honours also summarise the correct approach to be adopted by decision-makers in relation to an application for protection in the following passage:[31]
The correct approach is, therefore, for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s.36(2). If the answer to that question is in the affirmative it is necessary for the decision-maker then to turn to s.36(3) and determine whether or not the applicant is a person to whom that sub-section applies. If it does not, the “gateway”, created by s.36(2) to the granting of a visa remains open and there is no occasion to consider whether one or more of the qualifications to s.36(3) applies. If s.36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in sub-sections (4), (5) and (5A), which ensure that Australia’s international obligations under the Refugee Convention are met, limit the operation of s.36(3) and keep the “gateway” open.
[31]At [25].
It is apparent from the judgement in SZRTC v MIBP that the actual question before the Court concerned whether or not the applicants in question possessed a ‘right to enter and reside’. It is further evident that the question before the Court in this instance arose in the context of international agreements between nation states and not the status of a visa which had been applied for and granted. The following passage demonstrates the particular issue before the Court:[32]
By s 36(3) Australia is deemed not to have protection obligations to a non-citizen “who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently” any third country. The relevant question posed by the subsection is whether it can be said, having regard to all of the circumstances, that an applicant for a protection visa has a right (in the broad sense recognised by the Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU[2013] FCAFC 91, (2013) 215 FCR 35) to “reside .... temporarily” in the third country. There is an obvious tension between the stability which is suggested by the word “reside” and the transience implied by the word “temporarily”. That, however, is a tension which must be resolved on the facts in each case. It is not a warrant for extending the meaning of “temporarily” such that it covers the whole of the period (which may or may not be able to be ascertained at the time at which the relevant decision is made) during which the applicant remains subject to persecution in his or her country of origin.
[32]At [27].
Third country protection viewed in regional context
In light of the following observations, I refer specifically to the following passage of their Honours’ judgement relating to the specific situation where an applicant for protection does have a ‘right to enter and reside’ in a third country which may be something less than a permanent right of residence:
A finding that it was likely that the circumstances in the appellants’ home country which gave rise to protection obligations would persist or be likely to persist for more than six months would not, in our opinion, compel the conclusion that the appellants did not have a right to reside temporarily in the third country. On the contrary, we consider that the appellants’ right to enter other EAC [East African Community Treaty] countries and stay there for up to six months, constituted such a right.
It would be open to a decision-maker, consistently with the provisions of s.36(3), to take the view that the appellants’ right to enter and reside in another EAC country for up to six months constituted a right of temporary residence. If the decision-maker so decided a question would then arise as to what was likely to occur at the conclusion of the six month period. One possibility might be that the third country would extend protection to the applicant if there was a basis for apprehending persecution of the applicant in his or her country of origin. Another possibility might be that the applicant could move on to another EAC country for a further six month period. If, however, at the expiry of the first six months, there was reason to expect that the third country would return the applicant to his or her country of origin or send him or her somewhere else where the applicant might have reason to fear persecution, the decision-maker would be required to determine whether or not subsections 36(4), (5) or (5A) were engaged. In this way the legislative purposes of avoiding forum shopping and ensuring that Australia’s protection obligations under the Refugee Convention were honoured would both be satisfied.
In our view the Tribunal, in each case, applied the wrong test when it held that the temporary period of residence, contemplated by s 36(3), must be co-extensive with the period during which protection obligations persisted in relation to an applicant by reason of the circumstances confronting the applicant in his or her country of origin. This was a material error.
I have read the available country information relevant to economic co-operation and freedom of movement in the southern region of the African continent, including that contained within the delegate’s record of decision under review. There are a number of such formal regional agreements in place in addition to the EAC, including the COMESA and the SADC. However, these agreements cannot be relied upon in an uncritical manner as a basis for finding that third country protection is necessarily available to a given applicant for protection in Australia.
On the face of it, the available country information suggests that the applicants may, in fact, have had a right to enter and reside in a third country for the purposes of s.36(3) of the Act prior to their arrival in Australia. However, careful regard must be had to their particular circumstances, together with the potential effect of ss.36(4), (5) and (5A)[33] of the Act in light of available country information, before I can be satisfied that s.36(3) of the Act does have the effect of excluding the applicants from applying for protection in Australia. Such care in applying the relevant legislative provisions is recommended to decision-makers in cases including BAJ16 v Minister for Home Affairs [2019] FCCA 1598 (albeit in that case considering the interplay of the statutory provisions with the previous, Convention-based legislative scheme).[34]
[33]As per Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91 and SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43.
[34]Per Kelly J. See in particular [84]–[90] and [135]–[155].
In this respect, it is worth referring to the findings of the Tribunal (differently constituted, but considering regional rights to enter and reside for a displaced citizen of Kenya), about the various agreements providing economic co-operation and freedom of movement in the southern region of the African continent, including that contained within the delegate’s record of decision such as EAC, COMESA and SADC, as follows:[35]
74Secondly, the Tribunal notes that despite the member States of the EAC [East African Community Treaty] being signatories to the Refugee’s Convention, country information highlights that there has been both historic and ongoing human rights violations and breaches of non-refoulement obligations.
75The University of Oxford Refugee Studies Centre in a report from December 2010 provides the follows information on the freedom of movement within the EAC:
Neither the EAC nor the SADC [The Southern African Development Community] protocols remove the rights of states to expel or deport regional citizens on national security or public order grounds. Thus, the right to freedom of movement within a regional economic community is unlikely to constitute a substitute for refugee protection, not least the protection from refoulement that would protect EAC or SADC citizens who are also refugees. Furthermore, these regional free movement protocols do not take account of the fracturing of relations between a refugee and his or her home state, which could, for example, frustrate the refugee’s ability to obtain or renew passports or national identity documentation permitting them to travel throughout the region or to reside in one or more of the participating states. Convention Travel documents would still be needed in such situations.
[35]AAT, MRD 1504524, 25 July 2017 (NB: the report referred to, although not cited in that place is ‘Refugee Status Determination and Rights in Southern and East Africa.’ International workshop report, 16–17 November 2010, Kampala, Uganda (December 2010) ( accessed 1 March 2020).
What sources of third country protection were potentially available to the applicant?
Delegate’s findings
The delegate summary of the entry rights and relevant country information relating to Rwanda and Uganda suggested that the applicants may have had a genuine right of effective third country protection for the purposes of s.36(3) of the Act. Both countries allow exemptions for Kenyan citizens who wish to enter those countries without a visa. The delegate considered the ability of Kenyan nationals to ‘reside’ in Rwanda and Uganda,[36] for the purposes of s.36(3) of the Act, as this might apply to persons in the applicants’ circumstances.
[36]At (6)-(11). See: Directorate of Citizenship and Immigration Control, Ministry of Internal Affairs -Republic of Uganda, Uganda E-Immigration System website: at ‘Which nationalities are visa exempt?’ (Accessed 30 August 2020.) The same visa exemption appears to apply for Kenyan citizens in Rwanda (Rwanda Directorate General of Immigration and Emigration: (Accessed 30 August 2020).
The delegate, thereafter, took some care to consider whether or not the applicants were excluded from applying for protection in Australia by virtue of s.36(3) of the Act, and found that available country information suggested that this was indeed the case.[37]
[37]At (12).
In addition to the country information surveyed by the delegate relating to the EAC (which seems to be accurate as far as it goes) and the foregoing independent assessments of the EAC, I also note that the COMESA arrangements, provide for relaxed trading rules between member countries from September 2016 including a right of entry for business purposes between member countries of up to 90 days.
It was on this basis that the delegate refused to grant a protection visa to the applicant in the first instance. It must be said that these findings are not entirely persuasive in the current context, given that, in addition to historic inter-tribal and sectarian violence; the applicants assert that their inter-tribal marriage-related claims of holding a well-founded fear of harm did not arise until they formed a spouse-like relationship in Australia sometime after the arrival of Applicant 2 in this country in July 2014.
Accordingly, in this instance, some assessment of the applicant’s claims for protection is required before considering whether and, if so, to what extent, the question of effective third country protection is relevant or determinative.
It should also be appreciated that in order to access effective third country protection (if relevant), the applicants may initially be returned to Kenya, (at least temporarily). How the applicants would then ‘access’ the relevant third country protection becomes an exercise in conjecture that, for present purposes, appears to fall outside the Tribunal’s statutory obligation to determine the application on its terms.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). Applicants for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c) of the Act. That is, they are either persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit as such persons and they hold a protection visa of the same class.
Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicants for the visa are non-citizens in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person(s) is(are) a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b) of the Act.
Under s.5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in the Act at ss.5J(2)–(6) and ss.5K–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, they may nevertheless meet the criteria for the grant of the visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm: s.36(2)(aa) of the Act (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in the Act at ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Protection obligations
The Tribunal notes that s.36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by ss.36(3), (4), (5) and (5A) of the Act. They provide as follows:
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either ss.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.
The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of ss.36(4), (5) or (5A).
This qualification, which forms the legal basis for the delegate’s decision in the first instance, is considered further in detail below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
First hearing
At the first hearing with the Tribunal on 21 January 2020, it became apparent that the personal circumstances of the applicants had materially changed since the initial application for protection was lodged. The applicants were now legally married and had become parents.
I reminded the applicants of their ongoing obligation at s.104 of the Act to notify the Department of relevant changes of circumstances relating to a visa application. I asked the applicants if they had advised the Department of these changed circumstances and they indicated that their representative had not made them aware of this obligation. I pointed out that the obligation to notify was on the applicant under the Act.
The applicants’ representative confirmed that they had knowledge of the relevant changes to the applicants’ circumstances before the hearing. I pointed out to the representative that it was not consistent with their obligations as a registered migration agent to firstly fail to provide appropriate advice to their client about obligations under s.104 of the Act and then to fail to assist the Tribunal ahead of the hearing by providing submissions outlining the nature of the changed circumstances and implications for the review application. It was confirmed at the time that no application for protection had, to that point, been lodged on behalf of the infant [child] of the applicants.
At this point, the first hearing was concluded in order to allow the applicants an opportunity to take further advice and comply with their s.104 notice obligations.
Subsequent to the first hearing, the Tribunal received copies of; a [State 1] Marriage Certificate in the names of the applicants, dated [Date 2]; and, a [State 1] Birth Certificate in the name of [their child] dated [Date 1] showing the applicants as the parents of this child. On the basis of this evidence, I find that the applicants were lawfully married in [State 1] on [Date 2] and that they are the natural parents of an infant child, born in [State 1] on [Date 1].
As discussed above, following the first hearing (on 7 February 2020) the Tribunal was notified that the applicants had dispensed with the services of their previous registered migration agent.
Presumptive citizenship of the applicants’ infant [child]
The Kenya Citizenship and Immigration Act, 2011 (Ke) at s.7 provides that:
A person born outside Kenya shall be a citizen by birth if on the date of birth that person’s mother or father was or is a citizen by birth.
It is acknowledged that certain administrative processes may be necessary in order to formalise the citizenship status of the applicants’ infant [child]. Nevertheless, the relevant Kenya legislation presumptively declares that the infant [child] was, from birth, a citizen of the Republic of Kenya on the basis of the Kenyan citizenship of his applicant parents. No submissions to the contrary have been provided to the Tribunal by the child’s parents.
Noting the limited relevance of the migration status of a non-review applicant in the position of the applicants’ infant [child] to the present review application, I find as far as is relevant in the present circumstances that the infant [child] of the applicants is a citizen of Kenya.
Written submissions
By email dated 4 August 2020 Applicant 1 submitted a copy of email correspondence between himself and a family member in Kenya. In its entirety, this correspondence is as follows:
[[May] 2016 from: “[Mr A]”] ‘Hey bro your number is still on my other phone so text’
[[September] 2016 from: “[Applicant 1]”] ‘hiy [Mr A]
men its been a while how are you fairing on ? hope well, myself i am not too bad been working hard to try and build my life slowly. it is unfortunate what happened i would have love to be calling you on our free days and tell you about the new experiences here in Australia. Anyway its never too late i have heeps of stories and pictures you might love , gimmie a call one time it would be nice to catch up. Well to be honest i had other information to give to you first. [Mr A] our bond i have and will always respect i have never once tried to disrespect anyone and i hope you and [B] know that. I will cut the long strory short am thinking of coming home and was hoping that if no one stands with me atleast i know you have my back.
it would be nice if you beeped me and we talked hope you still have my number.
thanks bro
It will be appreciated that even with additional context the evidentiary value of such a disjointed and opaque correspondence in the context of the present enquiry review would be very slight. Accordingly, while I am prepared to accept that the applicant’s own statements in this correspondence suggest the existence of undisclosed problematic circumstances in September 2016, I am unable to accord any evidentiary weight to this exchange in the context of the present review.
By email dated 5 August 2020, the applicant stated:
Please find an article that shows the level of hate between the two tribes ,ie Kalenjin and Kikuyu.
Included in the email is a hyperlink address to an online newly identified source from 2008, reporting under the headline ‘Mutilated bodies found a week after Kenya massacre’. The report includes pictures of:
…a church where some 30 people were burned alive in Eldoret January 1, 2008. A week after a mob torched a church and killed 30 people in the worst single attack of Kenya's post-election violence, families are still finding mutilated bodies of loved ones in nearby fields.
Second hearing
Adjourned session
Having allowed the applicants a reasonable time in which to secure the services of an alternative representative, the Tribunal was faced with the social distancing issues arising from the COVID-19 pandemic emergency. Despite this, as discussed above, it was eventually decided that it was appropriate in the circumstances to proceed to a hearing by MS Teams video.
At the second hearing with the Tribunal on 5 August 2020, I reviewed the delegate’s decision record which formed the basis of the present review. I suggested to the applicants that their claims to hold a well-founded fear of harm in Kenya appeared to be as follows:
· Generalised election-based tribal violence;
· Tribal disputes between the Kikuyu and Kalenjin clan groups;
· Sectarian religious-based violence; and,
· Familial disapproval and rejection arising from their marriage in Australia.
The applicants accepted that their claims were fairly represented in this summary. Applicant 2 added that her marriage placed her in an uncomfortable position with both families and that her social media posts do not accurately portray the full circumstances of the inter-familial relationships in question. I note that the applicants provided credible evidence that no traditional ‘bride-price’ had been negotiated between the respective families and that no traditional wedding in Kenya has been proposed or is expected to occur. I acknowledge that this evidence is entirely consistent with the proposition that the applicants’ marriage does not have the blessing or support of their respective families in Kenya.
I also put to Applicant 1 that his delay in seeking protection after his arrival in Australia in February 2013; his non compliance with his student visa conditions; and, his subsequent period of six months as an unlawful non-citizen in Australia before applying for protection raised significant credibility questions about his subsequent claims for protection, given that a genuine applicant for protection would reasonably be expected to take steps at the first opportunity to obtain assistance, advice and suitable protection.
I put to Applicant 2 that her return trip to Kenya in late 2016 and early 2017 was not necessarily consistent with a claim to hold a subjectively genuine well-founded fear of harm in that country in light of the same considerations as the decisions in the case of Iyer[38] discussed above.
[38]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000).
After advising the applicants that their claims and personal histories presented significant credibility issues in the context of their protection visa application, I indicated that no findings on any of these matters had yet been made. I noted that adverse credibility inferences were also made by the delegate in the record of decision by the delegate, accordingly, the applicants should have been on notice that credibility would be an important issue on review. I stressed again that it was for the applicants to make their own case and that they should present whatever evidence they believed would assist the Tribunal in making the correct and preferable decision on their review application. Thereafter, the second hearing was adjourned to allow the applicants to reflect on the Tribunal’s credibility warnings.
Written submissions
Inter-tribal conflict and marriage taboo
By email dated 12 August 2020 Applicant 1 submitted a statement on behalf of the applicants addressing a number of issues that had been discussed previously with the Tribunal. With respect to the inter-tribal conflict, this statement relevantly stated that:
Ethnicity/Tribalism between our tribes (Kikuyu and Kalenjin) is still very strong and I would be considered as an outcast having broken the traditions and beliefs in my culture as my marriage will not be accepted and due to the bitterness of my family who believe that I have ashamed them. This sense of tribalism to date is still playing a significant role even the governance of my native country. Most tribes are egocentric and always want all for themselves in all aspects ranging from power in politics leaving a polarized state. This is clearly portrayed in the present situation in my local government where the incumbent president (Kikuyu) has sidelined his deputy (Kalenjin) working together for almost eight years as an elected pair in the presidency leaving him with no clear role to play while he is in office. This situation has further been worsened after the members of the Kikuyu community are fronting someone else to take over the premiership when the current president retires breaking the covenant that they had signed for the deputy to take over after completing his two terms in office. (Refer Citations and commentaries).
The submission refers to 7 hyperlink references to online media sources as follows:
· An August 1999 research report Canada: Immigration and Refugee Board of Canada, Kenya: Ethnic fighting between Kikuyu and Kalenjin in the Rift Valley (1998–1999), 3 August 1999, KEN32456.E, available at: 27 January 2008 DeseretNews online news article highlighting the difficulties faced by inter-tribal married couples during the 2007–2008 inter-tribal violence ‘Kenya violence takes toll on intertribal marriages’ available at ‘ Kikuyus are forced to flee, leaving their families behind’
· A (2019?) news story about a Deputy President’s desire to contest the election in 2022 by The Standard Entertainment and Lifestyle ‘You’re not eligible to vie in 2022, David Murathe tells Ruto’, and related news stories about political instability from 13 April 2020 by Nation ‘Murathe to Ruto: Shape up or ship out, we’re tired!’, from 22 May 2020 by The Standard Entertainment and Lifestyle ‘Murathe: DP Ruto’s threat to Uhuru ended their relationship’, from 8 August 2020 by KTN News Kenya (YouTube) ‘Raila is Unbeatable: David Murathe says the country should brace for a Raila presidency in 2022.’
Applicant 1 further stated in his 12 August 2020 submission:
SERIOUSNESS IN THE ISSUE
Ever since I was a young boy, we were always taught about the importance of marrying from own community by our community elders, parents, grandparents, age set leaders and that was known by everyone in our community.
When we went to the bush for the cultural initiation (circumcision) from a boy to a man for a month, it was emphasized that we were free to date whoever we want, but when it comes to courtship and marriage, the outsiders (other tribes) were not to be welcomed. (find attached an email copy received from one of the men who I was initiated with) [NB: no email attached]
Although the world may not know it, Kenya is a country with over 42 tribes and tribalism is practiced heavily among most of these tribes. An article by Abraham Obunga explain the root cause for this (refer commentaries and citations)
According to the article from one of Kenya’s leading daily (The Star 2020), interracial couples are socialized differently and this sometimes leads to conflict. They face discrimination and red tape when visiting or settling abroad (refer commentaries and citations)
There are various cases that have been reported where parents/ communities reject partners from other tribes (refer commentaries and citations)
Some would say that to avoid all this why wouldn’t someone just marry from their own tribe and avoid the trouble that comes with it. I find this primitive, backwards and unfair because we should all be able to love who we choose irrespective of race, religion, tribe etc. (refer commentaries and citations) and instead of forcing ourselves to love someone we don’t, we have decided to follow our hearts.
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The applicants also stated as follows:
CONCLUSION
In conclusion, we would like to explain further how election violence affects mixed marriages in Kenya .
The root cause of hatred between communities (kikuyu and Kalenjin) is land issues. These two tribes live in neighboring lands, kikuyu are in central Kenya and Kalenjin in the Rift Valley and they believe that a section of kenya (rift valley for kalenjins) should only be owned by that tribe, never mind that a person from another tribe might have acquired that land legally. Because it is against the law to chase anyone from a legally acquired land they wait for general election period and as a norm when the violence erupts, which always happens they use it to attack the land owner who they deem “outsiders”. The attacks normally range from scare tactics, destruction of property, intimidation, beating and Murder. As they do these in human acts they convince themselves that they are “cleansing the land”.
The Cleansing of the land does not stop at intruding tribes, it extends to members of the community who have gone against the traditions like I have. Normally people like me will be punished around this time if not sooner. It is easier this way because there will normally be a mob and it will be almost impossible to accuse one individual. A lot innocent lives have been lost during election periods when the motive had absolutely nothing to do with politics.
With the Kenyan Election less than 2 years away, everything happening in the country shows all indication of another bloody election period. The deputy president (Kalenjin) and his boss (kikuyu) who had been elected with the promise of bringing all communities together have already started tribal politics. The president even though he had promised his deputy he would support him in 2022, has changed his mind and sidelined him completely from the daily running of the government. 16 Members of parliament allied to the deputy president have been axed from the leadership of key house committees in the purge orchestrated by the president. The innocent people of Kenya are again gearing up for another bloody election, and different communities are waiting for this time to Cleanse their land”. We pray that you may consider our plea to continue to stay in peaceful Australia, we understand the consequences of being a Protection Visa is that it May be stripped of it if we go back to Kenya and to be honest we will be glad if we never have to go back.
ohttps:// in seeking protection
Applicant 1 also stated in the 12 August 2020 submission that:
Immediately after my parents found out that [Applicant 2] was here and we were cohabiting, he cut off paying the school fee and asked me to go back to Kenya. I declined and chose to be with [Applicant 2]. I tried to request for an extension with the university but it was unsuccessful as they needed me to give them proper evidence of why I could not pay my school fees and just me telling them that my father had cut me off was not enough. I thought I could miss a semester while searching for funds be it from the few friends I had made and my siblings from [Country 1], I even contacted my Mum who just told me to do as my father had said.
I was also going through the most stressful time in my life as I was incommunicado with my family with whom I was very close to, and missing school was adding to it massively. I did not know about protection visa in the beginning and because I did not want to be an illegal migrant, I was advised by a friend to see an immigration agent. Unfortunately, the migration agent warned me of a breach of condition 8202 (students must enroll in a course at all times) if you miss a semester that could lead to a cancellation of your student visa. Unfortunately, the long delay caused by my effort to source funds from other sources had costed me my student visa. This was when the agent advised us of the available options, taking into account the fallout with my parents.
Applicant 2’s return to Kenya
In the 12 August 2020 submission, responding to the Tribunal’s concerns about her 2016/2017 return visit to Kenya, Applicant 2 stated as follows:
[APPLICANT 2] TRAVEL TO KENYA
I([Applicant 2]) travelled to Kenya to sign some court documents regarding a probate matter in the Estate of my late dad [Mr C] (death certificate attached) in order of Administration testate. My dad passed on ([Date 3]) one week after arriving in [City 1, Australia]. Due to financial constraints on my part I never made it for the funeral.
According to his Will (please find will attached), he had left me some land to inherit and some of them we had to subdivide with my siblings and each had to acquire their own title deed to avoid future wrangles with my siblings. I was contacted by our Family lawyer handling the case and asked to avail myself to sign some documents to facilitate the process of acquiring the title deeds.
I arranged to Travel to Kenya to sign the documents where I planned to stay for a period of 3 weeks given the extensive paper work I needed to complete (Please find attached), land inspections, family meetings and allocations. Nobody from [Applicant 1]’s family got know of my going to Kenya because everyone thought that I’m in Australia and because of what they had put us through we decided not to mention anything just to keep myself out of harm’s way.
Social media interaction with family in Kenya
Responding to the Tribunal’s questions about the delegate’s findings relating to the inconsistency between the applicants’ claims of familial estrangement and their social media postings and related inconsistencies during protection visa interviews regarding the extent of inter-family interaction at pp.4–5 of the delegate’s record of decision, the applicants stated as follows:
[Social Media 1] is a public social media platform that anybody have access to whether for the right or wrong intentions or just to know the whereabouts of an individual. Just as the immigration found out about the activity on our [Social Media 1] pages, my family also got information about us the same way. I would like to make it known that before [Applicant 1] went against his father’s wishes he enjoyed a wonderful relationship with his siblings. I say this because although in our traditions the man is the head of the family and his word is “law”, it is common for people to do things behind peoples back hoping they would not see it and on this occasion I am truly convinced that they went through our social media pages behind his father’s back just to know of our wellbeing. A perfect example is when his sister from [Country 1] came to visit for two weeks when our [child] was born without his parents finding out.
And so we would wish that people commenting or liking anything on social media should not be a measure or used as a credible basis to determine having communication between us and our families. In today’s world you have people who follow you on social media but you have absolutely no idea who they are, it would be unfair if someone said you are in a relationship with them or there are your friends or you would have a family member who is your friend on social media as well but never comments nor likes anything on your pages it would not be accurate to say we are not related.
It must also be understood that having disagreements does not make us enemies in fact I am sure [Applicant 1]’s mum and siblings would want their relationship to go back to what it was but are afraid of his Dad and the community especially the men. We find that sad, backward and are glad not all youth these days share the same sentiments.
We want others to be encouraged by our actions to bring peace and harmony to Kenya. We respect our elders, but tranquility and unity amongst Kenyans are paramount. Our fathers and mothers who created the divisions among the tribes would be gone tomorrow, and we the new generation will remain to suffer for their inequities. We have the support of our friends and well-wishers here we want our [child] to freely love who [s/he] wants. We will not give up.
Sectarian violence
Responding to the Tribunal’s questions about the applicant’s claims to hold a well-founded fear of harm in Kenya on account of sectarian violence in that country, the applicants stated as follows:
TERROR (CHRISTIANS VS MUSLIMS)
An Islamic terror group (Al-Shabaab) has for a very long time been terrorizing non-Muslim Kenyans. They started by hijacking boats/ships and asking for ransom, kidnapping tourists and when the kenya government decided to deal with them, they decided to reciprocate by killing Christians. To date they continue to make random attacks around the country using different tactics.The group has continued its efforts at recruitment and territorial control. The group maintains training camps in different parts of Kenya and neigbouring Somalia.
session
The second hearing was resumed (via MS Teams) on 20 August 2020. This hearing commenced with a review of proceedings to that point. I referred to submissions received and indicated that these would be received in their terms, but that the relevance of the dated material and the hyperlink addresses and their own circumstances was not apparent. I stressed that, while the material would be considered, it was for the applicants to explain why they had selected the material as being relevant to their claims for protection and how it related to their particular circumstances.
I asked the applicants if they wished to make any submissions regarding their infant [child] in the context of the application for protection, in the context of [her/him] not being a review applicant in the present review.
In response, the applicants stated that they did not want their small family to break apart. They stated that they feared the impact on their [child] due to the pressure on their family unit as a consequence of their core claims for protection, namely interfamilial opposition to the marriage of the applicants and the potential for inter-tribal retribution arising from the fact that the applicants had become married in a manner not recognised in traditional terms within either community, and positively opposed by the family of applicant 1.
100. I confirmed with the applicants that they had no witness statements to submit to the Tribunal to assist me with making the correct and preferable decision in the application. Initially the applicants indicated that they had relied on their migration agent to advise what evidence would be suitable to provide to the Tribunal. Applicant 1 then suggested that because of communication difficulties with Kenya it was problematic to seek witness statements from that source. I asked the applicants whether or not they had requested supporting statements from family or friends in Kenya who might be able to provide greater context to their claims for protection. They indicated that they had not made such requests and provided no reason as to why such requests were not made.
101. I noted that the applicants had suggested that the Tribunal take evidence from the sister of Applicant 1, who is currently a resident of [Country 1] resident in [Location 1]. I asked the applicants how this witness might usefully assist the Tribunal in its determination. Applicant 1 indicated that this sister had visited with the family unit in [City 1] for a two week period shortly following the birth of the infant [child] of the applicants.
5: The root cause of tribalism in Kenya
6: Read this before you marry outside your tribe
The applicants make the following statements relating to the foregoing sources:
Significant harm we may face if we went back to Kenya
Marriages in many cultures are still not fully accepted by many ethinic groups in Kenya which has led to broken marriages or harm and strain to the couples due to lack of approval by parents, relatives, friends and communities. “Marriage across cultures is not fully accepted by many ethnic groups. Even among those who have embraced Christianity there is still some resistance.” (Item 2).
In our case we come two different ethnic groups namely Kalenjin and Kikuyu that for decades have been having conflicts from land issues and political stands, “Marriages across cultures in Kenya experience challenges both before and after marriage. Before marriage, the challenges include acceptability by both sets of parents and relatives, stereotyping or tribal prejudices because of historical ethnic differences, which may be political, social or economic and bad examples of people from the ethnic group, which reflect an ethnic group negatively.”(Item 2) this has however gone to the extent of interfering with marriages in intertribal marriages .This is evident in the report Item 2 where it stated, .“In Kenyan situation marriages across cultures are taking place in an environment where ethnic communities have for the last two decades experienced recurrent ethnic tensions and sometimes violence on every election year. As a result, these marriages are likely to experience seasons of anxiety, uncertainty and fear. These experiences have the potential of leading to unfulfilled marital expectations, increased divorce rates, separation and cohabitation.”
We sought for Protection in Australia because we have fear we may face significant harm if went back to Kenya. We fear that we may suffer from discrimination, cruel and inhuman treatment, psychological harm and being killed. There has been a trend in Kenya where intertribal violence breaks during presidential General election by and the first target has always been intertribal marriages as evident from the last 2 general elections. These marriages suffer immensely from being beaten, killed together with their children to their houses being torched and burnt down “In Kenyan situation marriages across cultures are taking place in an environment where ethnic communities have for the last two decades experienced recurrent ethnic tensions and sometimes violence on every election year” Item 2.
“Naomi Kering, 34, from the Kalenjin tribe, returns to her torched home in Chepkanga, Kenya. Mobs attacked the home last month because her husband, Isaac Guthua, is from the Kikuyu tribe. He fled the village with his brothers, and they haven't been home since” Item 1
We fear that we may be killed during this coming General election in 2022 if we went back to Kenya.The current president is a Kikuyu and his deputy is a Kalenjin and the two have been having conflicts. With the Kenyan Election less than 2 years away, everything happening in the country shows all indication of another bloody election period. The deputy president (Kalenjin) and his boss (kikuyu) who had been elected with the promise of bringing all communities together have already started tribal politics. The president even though he had promised his deputy he would support him in 2022, has changed his mind and sidelined him completely from the daily running of the government. 16 Members of parliament allied to the deputy president have been axed from the leadership of key house committees in the purge orchestrated by the president. The innocent people of Kenya are again gearing up for another bloody election, and different communities are waiting for this time to Cleanse their land according to the following article“Ethnicity plays a big part in Kenya's elections, with many people voting along communal lines, and occasional outbreaks of political violence in which people are targeted according to their ethnic background. This can make life difficult for mixed ethnicity couples”
“Since post-election violence in 2007-08 in which more than 1,500 Kenyans were killed and an estimated 600,000 displaced, people have tended to be jittery around election time - and it's no different this year.
The last election passed without any major disruptive incident but there seems to be palpable fear and anxiety heading to this year's election, despite the government's reassurance on security and top politicians calling for peace.
"I just don't want to be here, especially with my children. I just want to feel safe," Manuel says and he has reasons to be worried.”
"My aunt and her family have started feeling that their neighbours, some whom they have known for a long time, are showing enmity towards them, so they are planning to be away from the area during the election," Manuel says. Item 3.
In addition from this article common citizens are not spared from the violence by virtue of marrying from the “wrong” tribe.“On the night the election results were announced, however, Guthua said he could not stay. Kikuyus were being hunted down and slaughtered. As Kering cooked dinner and Guthua watched the news, they heard screams in the distance — a mob was coming for Guthua and other Kikuyus, including his two brothers who lived next door with their Kalenjin wives.” Item 1
We also fear discrimination, psychological harm, cruelty, hatred and curses from our communities. Kalenjin and Kikuyus among other tribes hold very strong cultural beliefs,set values, customs and taboos which has led to discrimination, hatred, evil treatment and curses in families or individuals who go against these cultural practices. “It is not easy to disobey parents or the larger community’s will. Yet sometimes, disobeying them, you must. Mostly, it means you are on your own with your family.Or if you have a lot of money then you can buy your family’s good will. The first problem to encounter is that your people will never accept your wife. Sometimes the man too can be out-rightly rejected.” Item 4
From our last hearing, one issue that was raised by the member was that Kalenjin and Kikuyu intermarriages were not uncommon in Kenya. In challenge to this is that we have both been socialized differently and our parents and relatives are traditional and still hold strongly to the cultural settings. And it’s not only in our case many other couples have been strained from the communities ties to cultural practices which are passed from one generation to the next. For example, I ([Applicant 1]) am from Kalenjin community and according to Kalenjin traditions my father was the one to get me a girl to marry, I went against the community practices to marry [Applicant 2], the following are excerpts from different articles explaining the same
“The undermining of women in Nandi customs starts from the day she is born. There is no fanfare. If however a son is born, the father invites his friends for a beer drinking party and a bull is slaughtered and consumed. There is no courtship among the Nandi. The mate is chosen for the girl. If she rejects him she is taken by force or ostracized from the clan. After marriage, incase of separation, the wife moves out of the home. She is not allowed to go with her children and they are left behind with the father.”Item 6
“Yet still, others who consider themselves educated and exposed take an oath that tribalism must be part of their life. The decision however remains fully personal. Certain communities believe their counterparts are evil and have committed injustices which are not worth forgiving.” Item 5
“Tales have been told of lovers who had to end their relationships or marriages just because parents or relatives were opposed to them. However, some often defy parents and relatives and go ahead. Unfortunately, they always end up being ostracized, hated or even outlawed by either their families or spouses’ families” Item 4
“Today, Peter is despised and treated with contempt by his father and hardly invited to family meetings. And when invited, he is never given treatment that befits a firstborn. He’s not allowed to sit “in the house” per say, he’s allocated a seat next to the door (a preserve of last borns in his community).His opinions and suggestions don’t count. His wife is accused of all sorts of things. Despite being disliked and unwelcome, she is accused of “confusing” him and making him not visit or support his parents.” Item 4
135. Also included in this submission is a statement, purporting to be from the witness interviewed at the hearing discussed above identified as the older sister of Applicant 1. This statement is as follows:
I am writing as follow up of the phone call we had a few weeks ago related to my brother and sister in-law [Applicant 1] and [Applicant 2]. Among the questions you had asked, I feel I need to clarify one in particular. You asked me why my Brother [Mr D] had allowed his daughter [Miss E] to travel with my son and I am not sure I answered your question sufficiently.
There are really two reasons, first off my niece [Miss E] and My son [Master F] are very close, they are about 11 months apart and are inseparable, they travel together, have sleep overs, go to the same school (same class) and love each other very much. [Miss E] has travelled with just my family without her mum and dad to Kenya twice, gone camping with us and even visited my in-laws to spend the night a few times, this is one of the reasons I was able to convince my brother [Mr D] to allow her to travel with me.
The other reason as I had mentioned is I leveraged my being the oldest in my family to my advantage, my siblings respect me very much and even though [Mr D] harbors negative feelings towards [Applicant 1], it’s my seniority in the family that impacted his decision to allow [Miss E] to come with me. My desire to have my family reconcile has been a constant work in progress and the very small gesture of allowing my niece to meet her other family brought so much joy to me even though it did not resolve the shunning of my brother [Applicant 1] by the other family members.
I want [Applicant 1] and [Applicant 2] to be safe, they are good people who deserve a safe place to raise their [child], as I continue to advocate for unity in my family, I hope and pray they are able to live in a safe country.
Please don’t hesitate to reach out if you have more questions.
Findings
136. Based on the foregoing, I am prepared to accept that there have been documented cases of inter-tribal violence in Kenya which have, on occasion, resulted in the victimisation, violent harassment, intimidation and threat of individuals including, but not limited to those persons who are in either or both love marriages and inter-tribal relationships. The applicants’ claim to hold a well-founded fear of harm from Muslim extremists in Kenya now and for the reasonably foreseeable future is merely speculative and not supported by any evidence relied upon by the applicants in the course of this review.
137. I am required to make an independent assessment of the applicants’ claim to hold a well-founded fear of harm in Kenya now and for the reasonably foreseeable future for the essential and significant reason of historic and on-going inter-tribal and sectarian violence in Kenya (election related and other); and persons who are in either or both love marriages and inter-tribal relationships and who face implacable opposition from their families of birth. In the alternative, whether the applicants satisfy the requirements for a protection visa in Australia on complementary grounds due to family or societal stigmatisation, ostracisation and dislocation if they were to return to Kenya, now or in the reasonably foreseeable future. In doing this, I am entitled to consider whether the applicants subjectively hold such a fear, as well as whether the applicants objectively have such a fear.
138. I place considerable weight on the fact that Applicant 1 did not identify this cause of disaffection between himself and his father as the cause of his failure to comply with his previous student visa in his February 2016 initial application for protection or his subsequent March 2016 application for work rights in Australia. On both occasions, the applicant stated that this failure to comply with his original visa conditions was his father’s blood pressure and diabetes. The applicant’s evidence relating to inter-familial antipathy has, at the very least, been variable.
139. I also place considerable weight on the testimony of the applicants’ only witness, who acknowledged that inter-tribal marriages between Kalenjin and Kikuyu in Kenya are not uncommon. The fact that Applicant 1’s older brother permitted his [age]-year-old infant son to visit the applicants in Australia on the birth of the applicants’ own first born child (who is traditionally named after the father of Applicant 1) are all facts which are equivocal regarding the existence of implacable opposition from the family of Applicant 1 towards the applicants for the essential and significant reason of their inter-tribal relationship. I find that the extent of interfamilial antipathy arising from the applicants’ inter-tribal relationship has been embellished by Applicant 1.
140. I note that the applicants did not seek protection in Australia at the first reasonable opportunity, waiting some six months after Applicant 1 became unlawful in Australia. I also note that Applicant 2 returned to Kenya, after she had been included in an application for protection in Australia, for the purposes of attending to family business arising from her father’s death.
141. The fact that her father had bequeathed Applicant 2 a portion of family land in Kenya satisfies me that there was no antipathy between her and her family of birth for any reason. I do not accept Applicant 2’s evidence that she was required to be physically present in Kenya to give legal effect to the transfer of her interest in her family land in that country given that such transfers can be effected without a person being physically present in another country. Accordingly, I find that Applicant 2 returned to Kenya voluntarily and without experiencing any harm or inconvenience. For this reason, I do not find the claims of Applicant 2 that there is significant antipathy from her family of origin in Kenya towards either herself or Applicant 1 to be credible.
142. I am satisfied, on the evidence surveyed above, that there is and has been some antipathy between Applicant 1 and his family of birth due to his membership of the particular social group of persons who are in either or both love marriages and inter-tribal relationships. However, I do not accept that this antipathy rises to the level of ‘implacable opposition’ amounting to an ongoing threat of either serious or significant harm to the applicants or their young child if they were to return to Kenya now, or in the reasonably foreseeable future.
143. Accordingly, I find that whatever antipathy may be faced by the applicants (and their young child) from their families of birth or any other person on return to Kenya for the essential and significant reason of membership of the particular social group of persons who are in either or both love marriages and inter-tribal relationships, it does not rise to the level of a real chance of serious harm at s.36(2), (4)(b) of the Act. Accordingly, the applicants do not have an objectively well‑founded fear of persecution in Kenya now or in the reasonably foreseeable future from any person for any of the reasons identified at s.5J(1)(a) of the Act (the refugee criterion). Accordingly, the applicants do not engage Australia’s protection obligations at s.36(2)(a) of the Act.
144. Noting that the threshold for the real risk test at s.36(2)(aa) (the complementary criterion) is the same as that for the real chance test under the refugee criterion, I find that the applicants would face less than a real risk of significant harm as a result of any antipathy that may, in fact, exist between Applicant 1 and his family of origin in Kenya for the purposes of s.36(2)(aa) of the Act.
145. With respect to the infant child of the applicants, I have considered the best interests of this child and there is nothing to suggest that this child will be separated from his applicant parents now, or in the reasonably foreseeable future. I also note that the applicants have not raised any particular claims relating to this child in the course of their application for protection besides the core claims of inter-familial antipathy for the essential and significant reason of the inter-tribal relationship of Applicant 1 and Applicant 2. I have considered those claims above as put by the applicants.
State protection
146. I note that harassment, intimidation and threat by private individuals or groups does not amount to persecution for the relevant purposes under a protection application unless the State either encourages it or appears to be powerless to prevent that private persecution. This view is not a recent development in the relevant law. For example, when considering the previous statutory framework applicable to Australia’s protection obligations, the High Court stated:[45]
[45]Applicant A v MIEA (1997) 190 CLR 225 at 233, per Brennan CJ, referred to with approval in MIMA v Respondent S152/2003 (2004) 222 CLR 1 at [19].
A person ordinarily looks to ‘the country of his nationality’ for protection of his fundamental rights and freedoms but, if ‘a well-founded fear of being persecuted’ makes a person ‘unwilling to avail himself of the protection of [the country of his nationality]’, that fear must be a fear of persecution by the country of the putative refugee’s nationality or persecution which that country is unable or unwilling to prevent ... Thus the definition of ‘refugee’ must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee’s nationality.
147. I also note the following comments of McHugh J in the same case:
The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution.
The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality.[46]
[46]Applicant A v MIEA (1997) 190 CLR 225 at 257-8 per McHugh J. Note that in MIMA v Khawar (2002) 210 CLR 1, Gleeson CJ and Kirby J adopted a broadly similar view. However, Gummow and McHugh JJ appear to suggest a slightly different view on this issue.
148. It is well-settled that under s.5J(1) of the Act (and the previous Convention provisions from which the definition is drawn), while there can be no legal presumption of state protection,[47] there is some authority for the proposition that an asylum seeker in Australia will bear a practical burden of establishing that protection is lacking.[48] I further note that the Supreme Court of Canada stated in Canada (Attorney-General) v Ward (Ward) that in the absence of a state admission as to its inability to protect its nationals, clear and convincing evidence of a state’s inability to protect must be provided.[49] The Court continued: [50]
[47]A v MIMA [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999). E.g. Koe v MIMA (1997) 74 FCR 508, Thiyagarajah v MIMA (1997) 80 FCR 543 at 567, MIMA v Prathapan (1998) 86 FCR 95, MIMA v A (1998) 156 ALR 489 (Nicholson J, 9 April 1998) and MIMA v Kobayashi (unreported, Federal Court of Australia, Foster J, 29 May 1998).
[48]E.g. SZBJH v MIAC [2007] FMCA 1395 (Scarlett FM, 3 August 2007) at [43] and SZIRA v MIAC [2007] FMCA 1082 (Nicholls FM, 7 June 2007) at [32].
[49][1993] 103 DLR (4th) 1 at 23.
[50]Canada (Attorney-General) v Ward [1993] 103 DLR (4th) 1 at 23.
Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of State apparatus … it should be assumed that the State is capable of protecting a claimant.
149. In MIMA v Khawar, Kirby J referred to Ward in support of the broad proposition that as a practical matter in most cases, save those involving a complete breakdown of the agencies of the state, decision makers are entitled to assume (unless the contrary is proved) that the state is capable within its jurisdiction of protecting an applicant.[51] Accordingly, I have proceeded on the basis that the Kenyan state ‘is capable within its jurisdiction of protecting [the] applicant’.
[51](2002) 210 CLR 1 at [115]. In A v MIMA [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999) the Full Federal Court characterised the presumption that ‘nations should be presumed capable of protecting their citizens’ as ‘a presumption without a basic fact’ and therefore as ‘a rule of law relating to the existence of a burden of proof [which] has no part to play in administrative proceedings which are inquisitorial in their nature’. Accordingly, the Court agreed with the trial judge that there was no foundation in authority or principle which should lead it to accept the existence of a presumption in terms of Ward. The apparent conflict between these cases may be explained by the different ways in which Kirby J and the Full Federal Court in A characterised the reference in Ward to the presumption of protection.
150. There is nothing before me that would suggest that the Kenyan state would tolerate, condone or fail to control circumstances where the applicants might experience inter-tribal violence to the extent that such conduct could either amount to a real chance of serious harm or a real risk of significant harm being occasioned to the applicant now, or in the reasonably foreseeable future. Indeed, available Country Information satisfies the Tribunal that, according to international standards, the Kenyan State continues to provide an adequate level of state protection for the purposes of s.5J(2) of the Act, as set out in s.5LA of the Act.[52]
[52]UK Home Office, Country Policy and Information Note ‘Kenya: Background Information, including actors of protection and internal relocation.’ February 2018.
151. It is noted that the relevant assessment of state protection in relation to complementary protection assessment for the purposes of s.36(2B)(b) is differently framed and the assessment of the available standard of protection in a receiving country is on the basis of ‘international standards’.[53]
[53]MIAC v MZYYL (2012) 207 FCR 211 at [36]–[37].
152. This, together with the credibility concerns that I have identified with the applicant’s core claims for protection, satisfy me that the applicants do not have a well-founded fear of persecution in Kenya for the essential and significant reason of historic and on-going inter-tribal and sectarian violence in Kenya (election related and other); and persons who are in either or both love marriages and inter-tribal relationships and who face implacable opposition from their families of birth. In the alternative, I am not satisfied that the applicants satisfy the requirements for a protection visa in Australia on complementary grounds due to family or societal stigmatisation, ostracisation and dislocation if they were to return to Kenya, now or in the reasonably foreseeable future.
COVID-19
153. It is acknowledged that the international public health crisis arising from the current COVID‑19 pandemic is a factor weighing heavily on decisions for visa applicants in Australia. However, once again, I note that this decision is not a decision on return. As indicated above, I am, however, mindful that this decision has a potential to give rise to such a decision in the reasonably foreseeable future. I find that whatever measures may be applicable to the population of Kenya generally in response to the present COVID‑19 crisis do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of the refugee or complementary protection provisions.
154. There is no suggestion that either of the applicants satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
CONCLUSION
155. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.
156. They are also unable to satisfy the criterion set out in s.36(2)(b) or (c) and cannot be granted the visa.
DECISION
157. The Tribunal affirms the decision not to grant the applicants protection visas.
Dr Colin Huntly
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
- AGLC
- 1617684 (Refugee) [2020] AATA 5310
- Case
- [2020] AATA 5310
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether the applicants met the criteria for a protection visa, considering their claims of persecution in Kenya based on their inter-tribal relationship and the general violence in their home country. A key legal issue was whether the applicants could avail themselves of protection in Australia, or if they had a right to enter and reside in another country, specifically within the East African Community, which would preclude Australia from having protection obligations. The Tribunal also had to consider the applicants' credibility, the delay in lodging their application, and the impact of changed circumstances, including their marriage and the birth of a child, on their claims.
The Tribunal considered the applicants' migration history, including the cancellation of one applicant's student visa and their subsequent period as an unlawful non-citizen. It noted that the applicants had not notified the Department of significant changes in their circumstances, such as their marriage and the birth of their child, until well into the review process. The Tribunal also examined the provisions regarding third country protection, specifically section 36(3) of the Act, which states that Australia may not have protection obligations if a non-citizen has not taken all possible steps to avail themselves of a right to enter and reside in another country. However, this exception is qualified by section 36(5), which prevents its application if the non-citizen has a well-founded fear of being returned to a country where they would face persecution. The Tribunal also considered the presumptive citizenship of the applicants' child under Kenyan law.
The Tribunal affirmed the delegate's decision to refuse the protection visa. It found that the applicants had not established a well-founded fear of persecution in Kenya that would engage Australia's protection obligations. The Tribunal was not satisfied that the applicants had taken all reasonable steps to avail themselves of protection in a third country, particularly in light of their membership in the East African Community. Furthermore, the Tribunal found issues with the applicants' credibility, including inconsistencies and the failure to disclose material changes in their circumstances promptly.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
This qualification, which forms the legal basis for the delegate’s decision in the first instance, is considered further in detail below.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEFirst hearing At the first hearing with the Tribunal on 21 January 2020, it became apparent that the personal circumstances of the applicants had materially changed since the initial application for protection was lodged. The applicants were now legally married and had become parents. I reminded the applicants of their ongoing obligation at s.104 of the Act to notify the Department of relevant changes of circumstances relating to a visa application. I asked the applicants if they had advised the Department of these changed circumstances and they indicated that their representative had not made them aware of this obligation. I pointed out that the obligation to notify was on the applicant under the Act. The applicants’ representative confirmed that they had knowledge of the relevant changes to the applicants’ circumstances before the hearing. I pointed out to the representative that it was not consistent with their obligations as a registered migration agent to firstly fail to provide appropriate advice to their client about obligations under s.104 of the Act and then to fail to assist the Tribunal ahead of the hearing by providing submissions outlining the nature of the changed circumstances and implications for the review application. It was confirmed at the time that no application for protection had, to that point, been lodged on behalf of the infant [child] of the applicants. At this point, the first hearing was concluded in order to allow the applicants an opportunity to take further advice and comply with their s.104 notice obligations. Subsequent to the first hearing, the Tribunal received copies of; a [State 1] Marriage Certificate in the names of the applicants, dated [Date 2]; and, a [State 1] Birth Certificate in the name of [their child] dated [Date 1] showing the applicants as the parents of this child. On the basis of this evidence, I find that the applicants were lawfully married in [State 1] on [Date 2] and that they are the natural parents of an infant child, born in [State 1] on [Date 1]. As discussed above, following the first hearing (on 7 February 2020) the Tribunal was notified that the applicants had dispensed with the services of their previous registered migration agent. Presumptive citizenship of the applicants’ infant [child] The Kenya Citizenship and Immigration Act, 2011 (Ke) at s.7 provides that:A person born outside Kenya shall be a citizen by birth if on the date of birth that person’s mother or father was or is a citizen by birth.